Kimberly Jordan Sosa v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 6, 2023
• Docket: 13-21-00393-CR
• Status: Published

Opinion

NUMBER 13-21-00393-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KIMBERLY JORDAN SOSA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court of Lavaca County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Longoria

Appellant Kimberly Jordan Sosa challenges the trial court’s revocation of her

community supervision, arguing that the “underlying judgment did not comport with the

plea bargain.” We affirm. I. BACKGROUND 1

Sosa was indicted for assault of a public servant, a third-degree felony. See TEX.

PENAL CODE ANN. § 22.01(b)(1). Sosa pleaded guilty to the offense, and in exchange for

the plea, the State recommended five years’ incarceration to be probated for five years

and a fine of $500. The trial court stated:

I’m not a party to that agreement. I don’t have to go along with it. If I do go along with it, you will not be allowed to appeal. If I don’t go along with it, I will allow you to withdraw the guilty plea which I anticipate receiving from you momentarily and we can have that jury trial we talked about.

The trial court subsequently accepted Sosa’s plea of guilty, but stated it “will not

make a determination of guilt at this time.” The trial court then ordered a presentence

investigation report to be prepared and set a date for sentencing. On September 12, 2018,

a sentencing hearing was held, during which the trial court deferred a finding of guilt for

a period of five years, and placed Sosa on community supervision. At the conclusion of

the hearing, the trial court stated: “Ms. Sosa, you understand that if you violate the terms

[and] conditions of probation, since I made this a deferred, that that five-year cap is off,

[and] I’ll have the full range of punishment available to me.” Sosa confirmed her

understanding without objection.

In August 2019, the State filed a motion to adjudicate Sosa guilty, alleging six

violations of the terms of Sosa’s community supervision. The State filed an amended

motion to adjudicate guilt in October 2021, alleging seven violations of the terms of Sosa’s

community supervision. On October 21, 2021, at the motion to revoke hearing, Sosa pled

1 The State did not file a brief to assist in the resolution of this appeal. 2 true to five of the violation allegations, and the State abandoned the remaining two

allegations. The trial court found that Sosa violated the terms and conditions of her

community service, revoked her community supervision, adjudicated her guilty of the

offense of assault of a public servant, and sentenced her to six years in the Texas

Department of Criminal Justice, Institutional Division. This appeal followed.

II. PRESERVATION OF ERROR

By her sole issue on appeal, Sosa contends that the underlying judgment deferring

the finding of guilt and placing her on probation is void because it did “not comport with

the plea bargain and [she] was not afforded the opportunity to withdraw her plea.”

If a trial court rejects a plea-bargain agreement, the defendant is, as a matter of

right, allowed to withdraw her guilty plea, and the State may then withdraw its offer. See

Salazar v. State, 630 S.W.3d 151, 155–56 (Tex. App.—Eastland 2020, no pet.). Sosa

argues that she entered her plea of guilty in exchange for a sentence of five years’

incarceration to be probated for five years, and while the trial court indicated it was

accepting the agreement, the trial court instead deferred adjudication of guilt and placed

Sosa on community supervision for five years. Sosa, however, did not raise any objection

to the trial court’s imposition of the terms of her plea agreement. See TEX. R. APP. P. 33.1;

Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). Even if we conclude the

terms the trial court imposed were improper, Sosa agreed to the terms placed on her by

the court and, at sentencing, she did not move to withdraw her guilty plea. See Moore,

295 S.W.3d at 333; see also Cotton v. State, No. 13-13-00012-CR, 2014 WL 3724419,

at *3 (Tex. App.—Corpus Christi–Edinburg July 24, 2014, no pet.) (mem. op., not

3 designated for publication) (“The trial court warned Cotton that a sentence of up to twenty

years confinement could be imposed on him upon violation of the terms of deferred

adjudication, and Cotton accepted the terms. With this in mind, Cotton cannot now

challenge the sentence he received after adjudication.”).

Sosa argues that the error presented is systemic and may be raised for the first

time on appeal. See Bessey v. State, 239 S.W.3d 809, 813 (Tex. Crim. App. 2007)

(explaining that errors may be asserted for the first time on appeal if “the complaint is that

the trial court disregarded an absolute or systemic requirement or that the appellant was

denied a waivable-only right that he did not waive”). However, the error in this case does

not involve the admonishment requirements involved in Bessey. Instead the error arises

from the trial court’s alleged improper intrusion into the plea-bargaining process. The error

at issue is not systemic and may not be brought for the first time on appeal. Moore, 295

S.W.3d at 333 (“This court has not held that a trial court’s intrusion in plea-bargain

negotiations is systemic or waivable-only error and declines to make such a determination

now.”); cf Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999)

(“[R]egardless of whether the deferred adjudication was part of a plea bargain,

recommended by the prosecution, imposed by the trial court without objection by the

appellant, or granted under other circumstances, once the trial court proceeds to

adjudication, it is restricted in the sentence it imposes only by the relevant statutory

limits.”). By failing to object that the trial court’s conditions were improper, Sosa failed to

preserve error. Id.

We overrule Sosa’s sole issue.

4 III. CONCLUSION

The judgment of the trial court is affirmed.

NORA L. LONGORIA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 6th day of April, 2023.